On June 4, the US Supreme Court issued a 7-2 ruling in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission on behalf of the plaintiff, Jack Phillips, a baker and a devout Christian who refused to bake a wedding cake for a gay couple. David Mullins and Charlie Craig complained to the Colorado Civil Rights Commission, which ruled that Phillips had discriminated against them and ordered him to stop. Phillips appealed.
Justice Anthony Kennedy wrote the majority opinion, which ruled in Phillips’s favor on narrow grounds. Instead of arguing that religious conscience trumps anti-discrimination law, Kennedy argued that the commission displayed hostility toward the baker’s religious views. Kennedy cited comparisons of those views to religious justifications for slavery and the holocaust. Kennedy also pointed to three other cases the commission had heard, in which bakers had refused requests by Christian customers to make cakes with homophobic and religious messages on them. The commission didn’t explain clearly enough how these cases were different from the Masterpiece Cakeshop case, Kennedy argued.
The recent Supreme Court ruling inspired strong and predictable reactions. In The Nation, Sarah Posner warns not to underestimate the significance of Kennedy’s definition of hostility. “If the [c]ourt can accept claims of government ‘hostility’ on the tepid evidence on offer in Masterpiece, it will embolden other Jack Phillipses to refuse to serve LGBTQ customers, and to hope for a ‘slip-up’ by a public official.”
At the other end of the political spectrum, the mood was celebratory. David French’s commentary in the conservative National Review carried the headline: “In Masterpiece Cakeshop, Justice Kennedy Strikes a Blow for the Dignity of the Faithful.” Citing the treatment of the bakers who did not want to write homophobic and religious messages on their cakes, French’s key takeaway from the Kennedy decision is that “All bakers—regardless of religion—have the same rights and obligations.”
“Civil-rights commissions now have to understand that restrictions on religious bakers will carry with them the same implied restrictions on secular bakers,” French wrote joyfully.
It’s fitting that commentators are focusing their hot takes on what the ruling means for evangelical Christians. After all, Jack Phillips is an evangelical and so are his most vocal allies. Despite their dwindling numbers, evangelicals punch above their weight politically and their close relationship with the Trump administration makes liberals and the left nervous about the future of LGBT+ rights.
Flying under the radar in these back-and-forth reactions to the ruling is what the Supreme Court decision says about the rapidly growing religiously unaffiliated population in the United States and what religious freedom might mean for the nonreligious. What conservative commentators like French emphasize about the equal status of religious beliefs with secular ones runs the other way too: Kennedy affirmed that nonreligious folks have a right to conscience that stands on equal footing with those of churchgoers. Calling for equal treatment between religious objections and those “on the basis of conscience,” Kennedy concluded that the Colorado Civil Rights Commission’s “consideration of Phillips’ religious objection did not accord with its treatment of these other objections.” The call for equality between religious and secular conscience is a recent development, and one that matters in imagining what religious liberty will look like in the future.
It matters because the United States appears to be headed toward religious unaffiliation. When religious freedom was enshrined in the Constitution, its primary purpose was to protect churches (and, on rare occasions, synagogues, mosques, and temples) against other churches. Religion was equated with church membership and church authority. But today, more and more people are post-church. The number of “Nones”—people who answer “None of the above” when asked about their religious affiliation—is exploding. Between 2003 and 2017, “Nones” have nearly doubled from 12 percent of the US population to 21 percent, while white evangelicals shrank rapidly from 21 percent to 13 percent, according to a recent report. It’s not that people are becoming less religious today. Perhaps they are, but the clearer trend is that Americans are disaffiliating themselves from religious institutions and are refusing to subject themselves to religious authorities.
What will religious liberty look like for the unaffiliated? Kennedy’s call to treat religious and nonreligious conscience equally indicates that the future of religious freedom will not privilege religious groups over secular ones.
It hasn’t always been that way. The road to the right to conscience for the nonreligious was a long one. The presumption for most of American history was that the right to conscience-based objection was based on one’s membership in a church. The first nationwide conscientious objection law was passed by Congress in February 1864 in the final days of the Civil War, to accommodate “members of religious denominations, who shall by other or affirmation declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denomination.” The selective service regulations of World War I similarly relied on membership in a religious organization and on that group’s official doctrine. Objectors to WWI had “to be a member of a well-recognized religious sect…whose then existing creed or principles forbid its members to participate in war in any form.”
During World War II, the more ambiguous phrasing “religious training and belief” replaced the requirement of church membership and doctrine in conscientious objection law. Congress had tried to liberalize the definition of religion to make it more inclusive—but did they mean that belief must be rooted in “religious training”? Yes, said the Ninth Circuit Court of Appeals, affirming that “The use of the word ‘religion’ was not intended to be inclusive of morals or of devotion to human welfare” and that a belief in a deity was necessary. No humanists need apply. The Second Circuit Court of Appeals disagreed and ruled on behalf of a plaintiff who had a “deep-rooted” belief system based “on a general humanitarian concept which is essentially religious in character.” The warring arguments about who gets to have a conscience recognized by the government went on for two decades. It wasn’t until 1965 that the Supreme Court weighed in, ruling that all belief systems, whether religious or not, should have the same accommodation in conscientious objection cases.
Conscientious objection in the military may not seem like it has much to do with wedding cakes and gay marriage. But the long road to equal status of secular conscience with religious conscience should remind us of two things. The first is that equality for nonbelievers is a very recent development amid a longer history of privilege for churches. The second is that the trend has been to accommodate religious diversity in the law, and to include belief systems that don’t conform to formal church creeds and that don’t arise from church membership. Religious institutions still have many special privileges in the law, but, as the history of conscientious objection makes clear and as Justice Kennedy’s call to treat religious and nonreligious consciences reinforces, the future looks good for the “Nones.”
Posted by Gene Zubovich is a postdoctoral research associate at the John C. Danforth Center on Religion and Politics at Washington University in St. Louis. Follow him on Twitter: @genezubovich.